The Supreme Court handed down its decision in the joined cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home) which concern an employee’s right to the national minimum wage for periods of time when they are required to remain at home on their shift and/or residential care workers who ‘sleep in’ but they are not actually performing some specific activity. The Supreme Court dismissed the two appeals, which will be welcomed by employers in the care sector, providing them with more certainty. In doing so the judges also reviewed previous cases and set out in the judgement why they felt some of those cases should be overruled.
The appellants were carers who claimed that they should be paid the national minimum wage for the whole period of their night shift regardless of whether they are awake or asleep. They must remain at the place of work and are entitled to sleep. Mrs Tomlinson was a care worker who was required to sleep in and was only expected to intervene during the night, where required. She was only disturbed occasionally (six times during the past 16 months). She received an allowance for the night shift, but argued that she should receive the national minimum wage for the whole period of her shift. Mr. Shannon lived in a studio in an old peoples home. He had to be in the studio between 10 pm to 7 am. Only very rarely was he asked to help the night care worker who was on duty. He was paid a salary and received a weekly allowance to line in the home.
The legislation regarding the national minimum wage is set out in the National Minimum Wage Act 1998 and the accompanying regulations, the most recent version being the National Minimum Wage Regulations 2015 (the 2015 Regulations). There are four categories of work in the 2015 Regulations: “salaried hours work”, “time work”, “output work” or “unmeasured work” Mrs Tomlinson-Blake’s time was “time work” and Mr Shannon’s work was classified as “salaried hours”. For both these type of work Regulation 32 sets out the exceptions when the time is not taken into account and this applies where the worker is permitted to sleep during the shift and where the worker is at home. Where the individual is entitled to sleep during the shift, as in these cases, then the worker is only treated as carrying out time work or salaried hours work for the period when they are awake for the purposes of working.
The Supreme Court also made it clear that in interpreting the 2015 Regulations the Court can take into account documents and can refer to the reports of the Low Pay Commission (LPC) which is an independent body. The LPC had made recommendations regarding sleep in workers and made it clear that such workers should not receive pay for the hours they are paid to sleep on the premises but should be entitled to the national minimum wage for all times that they are awake and required to be available for work. In this case the Supreme Court agreed with the CA and held that simply having a listening ear did not amount to working for national minimum wage purposes. In addition, in the case of Mr Shannon, the mere fact that he was required to be present during specified hours was insufficient to lead to the conclusion that he was working. Lady Arden, who gave the leading judgement agreed that it was necessary to look at the arrangements between the employer and the worker to determine what the worker is required to do. So, if the worker is given time to sleep and the only requirement is to respond to emergency calls, then the worker’s time in those hours is not included for the purposes of the national minimum wage calculation for time work, unless the worker actually answers an emergency call. However, the position may be different for a night worker who is expected to be awake for the period of the shift although they may be entitled to nap.
The Supreme Court also considered previous cases and held that these were wrongly decided and should be overruled